Witness harassment has gone digital, and the justice system is playing catch-up

Not long after a 30-year-old Cleveland woman witnessed a man being fatally shot in the back, the gunman’s friends tracked her down and threatened her about testifying against him.

At first, they intimidated her the old-fashioned way. As she walked home one day, a friend of the suspect came up to the woman, called her a snitch and said there was a price on her head. She soon learned the man had also written about her on his Facebook page and solicited others to post her picture. In fear for her life, the woman went to the police.

Officers arrested the man on charges of witness intimidation and retaliation. He pleaded guilty last year and got 2 years in prison.

The crime isn’t new, but the method is relatively young. It’s part of a growing number of incidents of witness intimidation in the digital age, where face-to-face threats, anonymous phone calls and threatening letters are being replaced by clicks, posts and status updates.

This contemporary type of witness intimidation is taking many forms:

• In a Brooklyn courtroom, where an ultra-Orthodox Jewish man was on trial on charges he molested a girl sent to him for counseling at age 12, four spectators took a picture of his accuser while she was on the witness stand. They were promptly thrown out of the courtroom and later charged after a photo of the witness appeared on Twitter.

• In Philadelphia, a young man on trial for gun charges posted a copy of a witness statement on Facebook and instructed his friends to “kill all rats.”

• In Santa Fe, N.M., a 19-year-old was charged with using comments on his Facebook page to intimidate a witness in a case against his father, a former police officer charged with counterfeiting.

Whether it’s using Facebook, texting from inside courtrooms or using cellphones to take pictures of witnesses, the judicial system is grappling with how best to prevent an old problem in a new world.

“When I started as prosecutor, the intimidation was a lot more direct,” says Angela Downes, co-chair of the Victims Committee of the ABA’s Criminal Justice Section. “It’s a new frontier and being done in ways we never could have imagined before. We see a lot more people being intimidated through Facebook and even on Twitter.”

Downes says it’s hard enough to get victims and witnesses to testify in the first place. “This is another hurdle. There is a very big anti-snitch culture,” says Downes, a former Dallas prosecutor who is now a senior program associate with the Prosecution and Racial Justice Program for the Vera Institute of Justice in New York City.

“A letter can be destroyed. It can be thrown away. This memorializes it and it can be seen by many people. People are getting a lot bolder about it,” she says. “There’s a sense you can hide behind it. People are setting up fake accounts. We didn’t imagine this would be some kind of a problem.”

And it’s taking time for prosecutors to catch up.

HASTENING HARASSMENT

“The justice system can take a huge hit when this happens,” says Saleh Awadallah, an assistant county prosecutor and supervisor of the Major Trial Unit of the Cuyahoga County Prosecutor’s Office, which handled the Cleveland case of murder and witness intimidation.

“We’ve always had witness intimidation. It used to be more of the looks people gave each other in the lobby of the courthouse,” Awadallah says. “The problem now is that it occurs at the speed of light, the speed of Twitter; the speed of social media makes it easier. Sometimes it’s subtle, sometimes it’s not.”

Awadallah recently had a case in which a cooperating witness to a drug-related crime was exposed on Facebook and declined to cooperate further, deflating the prosecution’s case. “We don’t get to pick our witnesses. We don’t get to go to central casting,” he says. “The witness account of what happened is really the backbone of our criminal justice system.”

But it’s not just witnesses who are being intimidated. Prosecutors and jurors have been subject to being photographed or filmed in court by associates of the accused, whether they are gang members or family members. For example, as a jury in Cleveland sat down to hear testimony in a murder trial, jurors noticed someone in the gallery pointing what appeared to be a camera phone in their direction.

The terrified jurors told the judge, who learned that the man, a friend of the defendant’s, had recorded members of the jury, as well as prosecutors, for eight minutes. Cuyahoga County Common Pleas Judge Nancy Margaret Russo declared a mistrial and held the man in contempt for intimidating and frightening the jury, and possibly making others fearful of jury service in the future.

Frightening victims and witnesses has stretched far beyond the courthouse in ways that prosecutors hadn’t anticipated. Immigrant women who are victims of domestic violence, for example, have reported that their families have been harassed and intimidated when word reached their native countries about their accusations of abuse against their husbands.

It’s a phenomenon that Wanda Lucibello, chief of the Domestic Violence Bureau of the Kings County district attorney’s office in Brooklyn, has seen with growing frequency. Lucibello, Downes’ co-chair on the ABA Victims Committee, has dealt with many cases in which Arab women reported that their families were intimidated through phone calls, emails and social media postings after they filed domestic abuse charges against a spouse.

“As the world gets more flat, so to speak, the issues that prosecutors face are more complex,” Lucibello says. “No longer does information travel slowly at a snail’s pace. Now it’s at the press of a button.”

Lucibello recalls a case in which an Arab woman was hospitalized after her husband tied her up and beat her. The hospital reported her injuries to authorities, but the woman declined to cooperate with a prosecutor who visited her in the hospital. Part of the problem was that some of her husband’s relatives were in the room.

Persuading the woman to speak against her husband proved to be extremely difficult, Lucibello says. The woman had few options. If she left her spouse, she had no support network in this country, could not work legally and had no place to stay if she moved out. Her husband’s family owned the apartment building where they lived.

“Once she started taking action, there started to be pressure on her family overseas. They were receiving threats at home,” Lucibello says. The prosecutor’s office was able to work with a local Arab support group and immigration lawyers to secure safe housing for the woman and eventually prosecute her husband.

The Brooklyn DA’s office did not file intimidation charges against the husband or anyone else in that case since the prosecutors got their conviction. Had they done so, however, they would have faced the challenge of supporting those charges by obtaining and authenticating records of cellphone calls, emails, text messages and social media postings.

Keith Chval, a former prosecutor with the Illinois attorney general’s office high-tech crimes unit and now head of a Clarendon Hills, Ill.-based consultancy specializing in computer forensics and digital evidence, says that’s not always easy. “One of the first hurdles is getting the offending information and then tying it to the person,” he says.

Prosecutors would have to subpoena phone subscriber information, IP addresses, Internet account information and social media account information. “Then you need to put the bad guy at the keyboard to prove they really sent that information,” he says. “That’s half the battle. There can be several hurdles in the process to tie it back to a specific individual.”

Caren Morrison, a former assistant U.S. attorney in the Eastern District of New York and now an assistant professor of law at Georgia State University, says the speed and efficiency with which phone companies provide call records varies from company to company. “You can get those records by subpoena, but sometimes you have to lean really hard,” she says. Phone records can be used to establish a pattern of calls from one number to another, but they cannot identify the actual caller nor reveal what was said. “You can see patterns of calls, how long the calls are,” Morrison says. “But you don’t have the content. That would have to involve a wiretap, and that’s a whole other kettle of fish.”

Still, patterns of calls between numbers can be persuasive. “Juries really like that. They trust the record,” she says.

Text messages are trickier. As with phone records, companies store the data for different lengths of time. A coalition of law enforcement agencies asked Congress last December to require companies to retain text records for two years in case they might be needed for criminal investigations. Police or prosecutors who want such records would, in many cases, need to request preserving those records as soon as possible.

One of the ways courts are trying to curb electronic intimidation is to ban cellphones from courthouses. While ringing phones were once just an annoyance in court, they’ve now become multimedia tools with photo and video capabilities and instant links to social networks and the Internet. It makes them an instant security threat.

At the Dorchester division of the Boston Municipal Court, for example, First Justice Sydney Hanlon banned cellphones six years ago after a man took a photo of an undercover police officer in the court-house. He was later convicted of witness intimidation. “There was some discussion after that and I thought let’s just end it,” says Hanlon, now an associate justice of the Massachusetts Appeals Court.

The ban is in effect for everyone but lawyers and jurors. It’s hard to tell what effect it’s really had. “It’s an unnecessary distraction anyway,” Hanlon says. “The added bonus is that there are no more rings in the courtroom.”

SEEKING SAFETY

But it’s not rings that are such a concern in the courtrooms of Cook County, Ill., the largest unified court system in the country, where a ban on cellphones took effect earlier this year. The city’s homicide rate was higher than that of any other U.S. city last year, and police already were having a hard time solving the killings because of the no-snitch culture.

Gang intimidation has been a big problem in Cook County. When one of their own is on trial, gang members often linger outside the courthouse or sit in during a fellow member’s trial. Just knowing that gangbangers are around is often enough to frighten witnesses from testifying. Keeping cellphones out of their hands may help.

To that end, Chief Judge Timothy C. Evans instituted a cellphone ban “to provide safety within the courts, prevent pictures being taken with electronic devices and help to protect innocent individuals and those testifying in court.” The ban includes tablets such as iPads and any other electronic device that can be used to communicate or record.

“We want to do everything we can to ensure that justice is properly done by preserving the integrity of testimony and maintaining court decorum,” Evans said in a statement. “We understand this may be an inconvenience to some, but our primary goal is to protect those inside our courthouses and perhaps save lives in the process.”

Joe Magats, deputy chief of criminal prosecutions for the Cook County State’s Attorney’s Office, has seen plenty of examples of illicit cellphone use. “We’ve seen defendant’s family members taking pictures of witnesses and a judge filmed on someone’s cellphone camera, and we’ve had people take pictures of prosecutors,” Magats says. “It’s so fast and so immediate, it really ramps up the level of threats and the level of discomfort the victim might feel because now it’s out there in public. You’re way more visible out there than you were in the past.”

Recently, a defendant out on bond on an attempted murder charge took a picture of one of the witnesses and posted it on Instagram, saying: “These people are getting ready to take me down,” according to Magats. When the defendant came back to court for a hearing, her bond was revoked.

While technology has made witness intimidation more ubiquitous, it also has a reverse benefit. “We had a situation where someone was trying to intimidate one of our witnesses the old-fashioned way,” Magats says. “So one of them took out her phone and took a video of the guy making threats.”

Magats has mixed views on the Cook County cellphone ban. “From a witness intimidation aspect, yes, it’s a good idea because it will cut down on people’s opportunity to do this. However, for victims of domestic violence who must come to the courthouse, it will present problems because many are in fear for their lives and safety and need phones as lifelines.”

Marijane Placek, a public defender in Chicago for more than 25 years, says the cellphone ban will likely have little effect on witness intimidation. “The ban, in my opinion, is a bunch of paranoia,” she says. “It’s a draconian solution to what isn’t really a problem. I’m not trying to put it past people to do this. But these are public courtrooms and anyone can come in. You can’t tell me someone isn’t going to find a way to intimidate a witness if they want to.”

Magats agrees, but sees it as one way to preserve the sanctity of the courthouse. “You can only police stuff so much,” he says. “But victims should not be subject to that kind of intimidation in the court-house. It’s supposed to be a place of sanctuary and security. If they’re not safe in here, they’re not safe anywhere.”